This category (of wireless wiretapping cases) includes a consolidated class action complaint on behalf of customers against various Verizon and MCI entities, alleging wholesale dragnet surveillance. It also includes a few cases against Verizon entities arising under various state privacy laws.

This is the United States' Administrative Motion to Treat Recently Transferred McMurray Action as Subject to Pending Dispositive Motion.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States’ Administrative Motion Regarding Recently Transferred McMurray Action, McMurray et al. v. Verizon et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). MICHAEL F. HERTZ Acting Assistant Attorney General, Civil Division DOUGLAS N. LETTER Terrorism Litigation Counsel JOSEPH H. HUNT Director, Federal Programs Branch ANTHONY J. COPPOLINO Special Litigation Counsel PAUL G. FREEBORNE Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6108 Washington, D.C. 20001 Phone: (202) 514-4782 Fax: (202) 616-8460 Attorneys for the Government Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA IN RE NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION This Document Relates To: McMurray v. Verizon Comm., Inc., No. 09-cv-0131-VRW _______________________________________)))))))) MDL Docket No. 06-cv-1791-VRW UNITED STATES’ ADMINISTRATIVE MOTION TO TREAT RECENTLY TRANSFERRED McMurray ACTION AS SUBJECT TO PENDING DISPOSITIVE MOTION [CIVIL L.R. 7-11] Chief Judge Vaughn R. Walker Casse M::06--ccvv--01791--VRW D o Dcuomcuemnte 5n5t 75 5F7il e d 0F2il/e0d6 /0220/096 /P20a0g9e 1 oPf a7ge 1 of 7 Civil H. HUNT J. Division, Federal Programs Avenue, NW, COURT OF CALIFORNIA ) ) Docket RECORDS ) ) ) TO TREAT RECENTLY To: McMurray ) Inc., No. VRW ) ) L.R. Regarding McMurray et 09-cv-0131-VRW (MDL Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=63455518-017c-472e-947d-ac443ea0aed01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States’ Administrative Motion Regarding Recently Transferred McMurray Action, McMurray et al. v. Verizon et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). INTRODUCTION On December 19, 2008, the United States Judicial Panel on Multidistrict Litigation (“JPML”) transferred to this Court McMurray et al. v. Verizon Communications, Inc. et al., No. 08-cv-6264 (S.D.N.Y), a case in which plaintiffs challenge the constitutionality of Section 802 of the Foreign Intelligence Surveillance Act of 1978 (“FISA”), which was enacted in the FISA Amendments Act of 2008, Pub. L. 110-261, 122 Stat. 2467, Title II, § 201 (July 10, 2008), see 50 U.S.C. § 1885a(a) (“FISA Act Amendments of 2008"). As the Court is aware, Section 802 of the FISA provides that actions against electronic communication service providers shall be promptly dismissed if the statutory conditions for dismissal are satisfied upon a certification by the Attorney General of the United States. The Government previously moved to dismiss all actions against electronic communication service providers in this MDL proceeding based on this provision, see Dkt. 469, and, in opposition to that motion, the plaintiffs in cases against provider-defendants have challenged Section 802 of the FISA on the ground that it violates the constitution, see Dkt. 482. That matter was heard on December 2, 2008, and is presently under submission. The newly transferred McMurray action is for all relevant purposes identical to a separate action that was originally transferred to this Court in August 2006—McMurray et al. v. Verizon et al., 06-cv-03650 (S.D.N.Y.)—and which is one of the cases to which the Government’s dispositive motion applied. The first McMurray action raises claims, inter alia, against electronic communication service providers for alleged assistance to the intelligence community. The second McMurray action just transferred to this Court purports to challenge the lawfulness of Section 802 of the FISA Act of 2008. That is, the McMurray plaintiffs filed a second, separate lawsuit in another district court challenging application of Section 802 of the FISA to its first lawsuit which was pending before this Court. Accordingly, the Government sought consolidation of this second McMurray case to this MDL proceeding where the first McMurray action still resides, and the JPML concurred. Casse M::06--ccvv--01791--VRW D o Dcuomcuemnte 5n5t 75 5F7il e d 0F2il/e0d6 /0220/096 /P20a0g9e 2 oPf a7ge 2 of 7 19, 2008, the United States Judicial Panel on Multidistrict Litigation transferred to this et al. v. Verizon Communications, in Act which was enacted § 201 (July 10, 2008), see a) (“As the Court is aware, certification proceeding based in cases 802 of FISA That matter was heard on December action is for all relevant purposes identical to a separate originally to this Court in August 2006—McMurray and which is one of the cases McMurray action raises against alleged to the intelligence McMurray of FISA filed a second, lawsuit in district was the Government McMurray to this MDL the first McMurray resides, Regarding McMurray et 09-cv-0131-VRW (MDL Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=63455518-017c-472e-947d-ac443ea0aed01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Counsel for the Government has conferred with counsel for the provider-defendants and the provider-defendants have advised that they agree with the relief sought in this motion. 2 The identification of the lead plaintiff in the caption of this lawsuit has changed. When originally filed in the Southern District of New York, civil action 06-cv-3650 was brought by the two attorneys now representing the McMurray plaintiffs – Carl Mayer and Bruce Afran – and thus captioned Mayer et al. v. Verizon Communications Inc., et al. An amended complaint was later filed in the Southern District listing the McMurray plaintiffs, starting with Rev. Joe McMurray. The McMurray action (06-cv-3650) was then transferred to this Court by the JPML and given a separate document number within MDL-1791 (07-cv-02029-VRW) (N.D. Cal.). This separate MDL docket number lists the McMurray plaintiffs alphabetically and, thus, recaptions the case “Anderson et al. v. Verizon Communications et al.” To avoid any further confusion, we will refer to both the 2006 case as the McMurray case. United States’ Administrative Motion Regarding Recently Transferred McMurray Action, McMurray et al. v. Verizon et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 2 At this stage of proceedings, the lawfulness of Section 802 of the FISA has been briefed in connection with the Government’s pending motion to dismiss or for summary judgment in all actions against electronic communication service providers. The Government’s motion was specifically directed at the first McMurray action filed in 2006, and the plaintiffs’ joint opposition to the Government’s motion was submitted on behalf of the plaintiffs in the first McMurray case as well. Accordingly, as set forth further below, the second McMurray action transferred to this Court should be treated as subject to the Government’s motion with respect to claims against electronic communication service providers now under submission.1/FACTUAL BACKGROUND On May 12, 2006, the McMurray plaintiffs filed their first lawsuit against Verizon Communications Inc., and Cellco Partnership (collectively, the “Verizon Defendants”); BellSouth Corporation, AT&T Corporation, and AT&T Inc. (collectively the “AT&T Defendants); President George Bush, and the National Security Agency (collectively, the “Government Defendants”) in the United States District Court for the Southern District of New York. This first lawsuit was designated as civil action 06-cv-3650. On April 11, 2007, the clerk of this Court issued a notice docketing McMurray in MDL-1791 and designated that as civil action number 07-cv-02029-VRW (N.D. Cal.). See Dkt. 243.2/After enactment of the FISA Act Amendments of 2008, the United States filed a motion to dismiss or for summary judgment in all actions against electronic communication services Casse M::06--ccvv--01791--VRW D o Dcuomcuemnte 5n5t 75 5F7il e d 0F2il/e0d6 /0220/096 /P20a0g9e 3 oPf a7ge 3 of 7 stage has electronic communication providers. first McMurray the plaintiffs’ on behalf of the plaintiffs case well. as set subject to the Government’s service providers now under submission.1/BACKGROUND the McMurray lawsuit against Cellco (collectively, “AT&and AT&T Inc. (collectively the “AT&George Bush, and the National Security Agency (collectively, District District This first lawsuit was designated civil 11, 2007, notice docketing McMurray 1791 and designated civil D. Cal.). See Dkt. 243.2/Amendments actions defendants advised that they agree with the relief in the in the caption of this lawsuit has filed in the Southern New York, civil action 06-cv-3650 was brought the McMurray plaintiffs --amended District starting with Rev. Joe The action (06-cv-3650) was then separate document number within MDL-1791 (07-cv-02029-VRW) MDL lists McMurray alphabetically and, re-captions “Anderson et al. v. Verizon Communications et al.” refer to both the 2006 case case. Regarding McMurray et 09-cv-0131-VRW (MDL Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=63455518-017c-472e-947d-ac443ea0aed01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 McMurray plaintiffs are also listed in master consolidated complaints against the Verizon defendants, see, Dkt. 125, which was also subject to the Government’s pending motion, see Dkt. 469. United States’ Administrative Motion Regarding Recently Transferred McMurray Action, McMurray et al. v. Verizon et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 3 providers, including the McMurray action. See Dkt. 469 (listing among the actions for which dismissal is sought 07-cv-02029-VRW).3/The plaintiffs’ opposition to the Government’s motion likewise pertained to all actions in this MDL proceeding against electronic communication service providers, including the first McMurray action. See Dkt. 482. Indeed, plaintiffs’ opposition and reply briefs listed counsel for the McMurray plaintiffs. See id. at 52; Dkt. 524 at 47. Thus, there is no dispute that the first McMurray case was subject to the Government’s motion to dismiss actions against provider-defendants based on Section 802 of the FISA, and the McMurray plaintiffs were subject to briefing on the lawfulness of that provision, which culminated in a hearing on December 2, 2008. On July 10, 2008, the McMurray plaintiffs filed a second, separate lawsuit against the same defendants in the United States District Court for the Southern District of New York (Case No. 1:08-6264) (Attachment #1). The complaint in this second lawsuit challenges the lawfulness of Section 802 of the FISA—specifically as it would be applied to the lawsuit the McMurray plaintiffs had filed in 2006 and which had been transferred to this Court. See Attachment #2, Compl. ¶ 9. The Government then sought to transfer the second McMurray lawsuit filed in 2008 for transfer to these multi-district proceedings as a “tag along” case. On August 12, 2008, the JPML issued a Conditional Transfer Order (“CTO-7") transferring the action to this Court for inclusion in MDL-1791. On September 9, 2008, plaintiffs filed a motion to vacate CTO-7, which the government opposed. The JPML considered plaintiffs’ motion without oral argument during its November 20, 2008 sitting and, by Order dated December 19, 2008, transferred McMurray to MDL-1791 for “coordinated or consolidated pretrial proceedings occurring there in [that] docket.” Attachment # 2 at 2. In doing so, the JPML recognized that “[w]ith but one exception, plaintiffs in McMurray are also plaintiffs in [the earlier McMurray action] initially Casse M::06--ccvv--01791--VRW D o Dcuomcuemnte 5n5t 75 5F7il e d 0F2il/e0d6 /0220/096 /P20a0g9e 4 oPf a7ge 4 of 7 See among 07-cv-02029-VRW).plaintiffs’ proceeding against providers, including the first McMurray action. Dkt. plaintiffs’ for the McMurray See Thus, there case defendants plaintiffs were subject on plaintiffs filed a second, separate against defendants in the United States District Court for Southern District (Case The complaint in this second lawsuit challenges McMurray had in 2006 and which had been See The Government the second McMurray lawsuit proceedings Conditional Order (“1791. On September filed a motion to vacate JPML plaintiffs’ and, by Order dated to MDL-1791 for “coordinated or consolidated pretrial proceedings Attachment # 2 at In doing so, the “[but plaintiffs plaintiffs in [earlier McMurray action] initially McMurray plaintiffs are also listed in master consolidated complaints against Dkt. Regarding McMurray et 09-cv-0131-VRW (MDL Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=63455518-017c-472e-947d-ac443ea0aed01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 One plaintiff in the newly transferred McMurray action is not a party to the first suit before this Court—Amidax Trading Corp. See Second McMurray Complaint (¶ 10). But that plaintiff has no right to re-litigate the lawfulness of Section 802 of the FISAin this case either. Amidax has filed a separate lawsuit currently pending in the Southern District of New York, Amidax v. SWIFT SCRL, No. 08-cv-5689 (S.D.N.Y.), in which it seeks money damages and declaratory and injunctive relief in connection with administrative subpoenas issued by the United States Department of Treasury Office of Foreign Assets Control (“OFAC”) to the Society for Worldwide Interbank Financial Telecommunications (“SWIFT”). The SWIFT case is not before this Court, and to the extent the FISA Act of 2008 is even relevant in that case, any litigation over the matter would properly be considered by the Southern District of New York. United States’ Administrative Motion Regarding Recently Transferred McMurray Action, McMurray et al. v. Verizon et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 4 centralized in [the Court’s] docket in August 2006.” Id. 4/Because the constitutionality of Section 802 of the FISA “is already squarely before” this Court, the JPML found transfer appropriate. Id. The second McMurray action was docketed in this Court on January 13, 2009 and given a separate civil action number for these proceedings (09-cv-0131-VRW). See Dkt. 541. ARGUMENT After the second McMurray case was transferred to this Court, the parties have attempted to confer regarding the appropriate disposition of this action in this MDL proceeding, but have not been able to reach agreement. It is our understanding that the McMurray plaintiffs wish to present separate arguments concerning the lawfulness of Section 802 of the FISA, despite the fact that they have already participated in opposition briefing on the Government’s motion which is now under submission. The Government’s position is that further briefing in connection with the McMurray plaintiffs’ second lawsuit is not appropriate and that this second action should be subject to the parties’ prior briefing on the Government’s motion and controlled by the Court’s ruling on that now under submission. It is not clear why the McMurray plaintiffs filed an entirely new lawsuit in 2008 in another district challenging application of Section 802 to their 2006 lawsuit that was already pending before this Court. Once Section 802 was applied in this proceeding by the Government, the McMurray plaintiffs had an opportunity to challenge the lawfulness of that provision—and they did so. The Government’s motion expressly was directed at the original McMurray action. Casse M::06--ccvv--01791--VRW D o Dcuomcuemnte 5n5t 75 5F7il e d 0F2il/e0d6 /0220/096 /P20a0g9e 5 oPf a7ge 5 of 7 Id. 4/Because constitutionality The second McMurray action was docketed in this Court on January civil for proceedings (09-cv-0131-VRW). the second case was the parties disposition proceeding, able to reach agreement. It is our understanding that the McMurray plaintiffs arguments concerning the lawfulness of Section participated in opposition briefing further plaintiffs’ second lawsuit is not appropriate and that this second an Section that Once Section had an to challenge at the original McMurray in the transferred action See McMurray 10). has to re-litigate the lawfulness of Section 802 the this case lawsuit currently pending in the Southern District of in which it seeks money damages in connection with administrative subpoenas issued Department of Treasury Office of Foreign Assets Control (“Interbank The SWIFT case of 2008 is even relevant in that case, over the Southern District of Regarding McMurray et 09-cv-0131-VRW (MDL Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=63455518-017c-472e-947d-ac443ea0aed01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Indeed, counsel representing the McMurray plaintiffs (Carl Mayer, Bruce Afran, and Steven Schwarz) are listed in the plaintiffs’ opposition and reply briefs. See Dkt. 482 at 52 and Dkt. 524 at 47. To the extent the McMurray plaintiffs now claim they did not join in that briefing, the plaintiffs’ joint organization plan approved by the Court provides that where such a coordinated presentation is made, arguments made by coordinating counsel are binding upon all “actions later instituted, add-ons, or actions coordinated or consolidated . . . that involve similar claims.” See Dkt. 58 at 7-8 (¶ 3). That the McMurray complaint raises a takings claim, see Attachment #1, Count I, does not alter the fact that plaintiffs are bound by the previously submitted briefing; they had every opportunity to present such claim and chose not to do so. 6 While the original McMurray action includes claims against the Government, the second McMurray lawsuit filed in 2008 (09-cv-1131-VRW) concerns solely the lawfulness of Section 802 of the FISA, which relates to claims against the provider-defendants. 7 The Government notes that the defendants’ obligation to answer or otherwise respond to the complaint is currently due on March 19, 2009. To the extent that the Court is unable to rule on this motion before that date, the Government requests that the defendants’ obligation to answer or otherwise respond to the complaint be stayed until the Court rules on this motion. United States’ Administrative Motion Regarding Recently Transferred McMurray Action, McMurray et al. v. Verizon et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). 5 See Dkt. 469 (listing 07-cv-02029 as among actions for which dismissal was sought). Moreover, on October 16, 2008, a joint opposition was filed to the Government’s motion on behalf of all MDL Plaintiffs in cases against the provider-defendants—including the McMurray Plaintiffs. See Dkt. 482.5/The second McMurray complaint should thus be controlled by the submitted briefing on the lawfulness and application of Section 802 of the FISA, and there is no reason why the second McMurray action should now be permitted to proceed separately from that submitted matter. This is particularly so where the parties have already devoted considerable effort to briefing and argument on the Government’s pending motion now under submission. Thus, to the extent the McMurray plaintiffs now seek to use their newly filed action to brief a matter already under submission (which we understand is their intent), they should be foreclosed from doing so.6/CONCLUSION For the foregoing reasons, the Court should enter an order submitting the second McMurray action (09-cv-0131-VRW) to the already submitted briefing regarding the constitutionality of Section 802 of the FISA in connection with the Government’s pending dispositive motion.7/Casse M::06--ccvv--01791--VRW D o Dcuomcuemnte 5n5t 75 5F7il e d 0F2il/e0d6 /0220/096 /P20a0g9e 6 oPf a7ge 6 of 7 Dkt. (actions for which sought). a joint filed motion behalf of Plaintiffs in cases including the McMurray 482.5/McMurray the FISA, and there is no reason the action should now be permitted to proceed so where the effort Thus, plaintiffs now seek to use filed action to brief a matter already they should be foreclosed from doing so.6/action 09-cv-0131-VRW) to the already submitted regarding of Section connection the 7/representing the McMurray plaintiffs are listed in the plaintiffs’ See 482 at McMurray joint organization plan approved by the Court provides that where such made by coordinating binding . . . that involve See at 7-8 (¶ 3). That the McMurray complaint raises a takings claim, see plaintiffs they had every opportunity to present such claim and chose McMurray action includes claims against the McMurray 2008 1131-concerns relates against defendants. To the extent before that date, defendants’ obligation to complaint until Regarding McMurray et 09-cv-0131-VRW (MDL Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=63455518-017c-472e-947d-ac443ea0aed01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States’ Administrative Motion Regarding Recently Transferred McMurray Action, McMurray et al. v. Verizon et al., 09-cv-0131-VRW (MDL 06-cv1791-VRW). Dated: February 6, 2009 Respectfully Submitted, MICHAEL F. HERTZ Acting Assistant Attorney General DOUGLAS N. LETTER Terrorism Litigation Counsel JOSEPH H. HUNT Director, Federal Programs Branch s/Anthony J. Coppolino ANTHONY J. COPPOLINO Special Litigation Counsel s/Paul G. Freeborne PAUL G. FREEBORNE Trial Attorney U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Rm. 6108 Washington, D.C. 20001 Phone: (202) 353-0543 Fax: (202) 616-8460 Email: paul.freeborne@usdoj.gov Attorneys for the Government Defendants Casse M::06--ccvv--01791--VRW D o Dcuomcuemnte 5n5t 75 5F7il e d 0F2il/e0d6 /0220/096 /P20a0g9e 7 oPf a7ge 7 of 7 February H. HUNT J. Division, Federal Programs Avenue, NW, Regarding McMurray et 09-cv-0131-VRW (MDL Document hosted at http://www.jdsupra.com/post/documentViewer.aspx?fid=63455518-017c-472e-947d-ac443ea0aed0

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